Filed 8/21/24 P. v. Seechan CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.
CHAVA SEECHAN, Defendant and Appellant. F087426 (Super. Ct. No. VCF130050)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Tulare County. Antonio A. Reyes, Judge.
James S. Thomson , under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

- ooOoo

-

* Before Levy, Acting P. J., Poochigian, J. and De Santos , J.2

. INTRODUCTION In 2006, a jury convicted appellant of willful, deliberate, and premedi t ated attempted murder (Pen. Code , § 664/187, subd. (a)), 1 three counts of second degree robbery (§§ 211, 212.5, subd. (c)), and other related offenses and enhancements. Appellant was sentenced to 35 years to life , plus 41 years eight months in state prison. In 2023, the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court identifying a n error in the indeterminate abstract of judgment

. The CDCR noted that the indeterminate abstract of judgment reflected that, as to the willful, deliberate, and premedi t ated attempted murder count, the trial court incorrectly imposed an additional 15

- year term pursuant to section 186.22, subdivision (b)(5). In response to the CDCR’s letter, the trial court held a hearing and ordered the
15

- year term stricken from the indeterminate abstract of judgment . This appeal is taken
from the trial court’s order

. Appellant’s appointed counsel filed a brief with this court pursuant to People v.
Wende (1979) 25 Cal.3d 436 ( Wende ), identifying no error and asking this court to review the record and determine if there are any reasonably arguable issues on appeal. Appellant was afforded an opportunity to submit a supplemental letter or brief but failed to do so in
the time allotted

. We have conducted an independent review of the record and find no error. We
affirm.
BACKGROUND Appellant was convicted of willful, deliberate, and premedit at ed attempted murder (§§ 664/187, subd. (a); count 1), shooting at an occupied motor vehicle (§ 246; count 2), two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 3 and 7) and three counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 4

- 6). The jury

1 All further statutory references are to the Penal Code unless otherwise indicated.3

.

also found true the following allegations: as to counts 1

- 7, that appellant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); as to counts 1 and 5, that appellant intentionally discharged a firearm (§ 12022.53, subd. (c)); as to counts 5 and 6, that appellant personally used a firearm within the meaning of section 12022.53, subdivision (b); and as to counts 1, 3, and 7, that appellant personally used a firearm within the meaning of section 12022.5, form er subdivision (a)(1). The trial court sentenced appellant to 35 years to life plus 41 years eight months in state prison. 2 As pertinent here, on count 1, the trial court sentenced appellant to 15 years to life on the substantive offense pursuant to section 186.22, subdivision (b)(5), plus 20 years for the discharge of a firearm enhancement (§ 12022.53, subd. (c)), for a total indeterminate term of 35 years to life. In 2023, the CDCR sent a letter to the trial court stating appellant’s indeterminate abstract of judgment contains an error

. The abstract reflected , as to count 1, that the trial court imposed as an enhancement an additional 15

- year term pursuant to section 186.22, subdivision (b)(5). Thus, as written, the abstract showed a total sentence on count 1 of 50

year s to life, not 35 years to life. 3 The CDCR explained that section 186.22, subdivision (b)(5) provides for an alternate penalty provision, not an enhancement. (See People v. Jefferson (1999) 21 Cal.4th 86, 101.) Th i s subdivision states that when a defendant commits an offense for the benefit of a criminal street gang “in the commission of a felony punishable by

2 The trial court initially sentenced appellant to 35 years to life plus 45 years. On appeal, we reversed the section 186.22, subdivision (b)(1) gang finding on count 4, reducing the determinate portion of appellant’s sentence to 41 years eight months. ( People v. Seechan (Mar. 10, 2008, F051825) [nonpub. opn.].)
3 While not addressed by the CDCR, we observe that the 15

- year enhancement listed on the indeterminate abstract of judgment was not imposed during the oral pronouncement of judgment. “Ordinarily, where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls.” ( People v. Burke (2023) 89 Cal.App.5th 237, 244.)4

.

imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.” (§ 1 86.22, subd. (b)(5).) “ Unlike an enhancement, which provides for an additional term of imprisonment, the 15

- year minimum term in section [186.22, subdivision (b)(5)] sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.” ( People v. Jefferson , supra , 21 Cal.4th at p. 101. ) The CDCR observed that the trial court correctly applied the alternate penalty provision to count 1 by sentencing appellant to 15 year s to life on the substantive offense. But because section 186.22, subdivision (b)(5) is not an enhancement, the additional
15

- year “enhancement” term was erroneous. Upon receipt of the CDCR’s letter, the trial court set the matter for a hearing. The court and parties agreed the indeterminate abstract of judgment was incorrect, and that
the 15

- year “enhancement” pursuant to section 186.22, subdivision (b)(5), must be stricken. The court prepared an amended indeterminate abstract of judgment reflecting its order striking the additional 15

- year term from the abstract

. DISCUSSION As noted above, appellant’s counsel filed a Wende brief identifying no error and asking this court to review the record to determine whether there are any arguable issues on appeal. We have conducted an independent review of the record. We find that no reasonably arguable factual or legal issues exist.
DISPOSITION The judgment is affirmed.